The legal person as director in a limited liability company (S.r.l.)

The specialized section in corporate law of the Court of Milan in its judgement No.3545 of March 2017, has stated the legitimacy of the clause for which a limited company (Spa) shall be nominated as director of a limited liability company (Srl). In the event of potential detrimental acts, it is jointly responsible for the suffered damages, in addition to the legal person, also the natural person in charge of the management acts of the administrated Srl and that is genuinely responsible for the acts themselves, given that it is subject to the procedure under article 2476 of the Italian Civil Code.

The law, in fact, allows the limited company to become a fully liable member in the corporation and the related legal procedure of the Srl, organized according to flexible criteria, provides statutory arrangements for the identification and designation of the directors by way of derogation from the principle of the directors appointed by shareholders.

The decision of the Court of Milan is an expression of the Community principle for which the director legal person shall carry out the related duties through a representative designated by himself, whose nomination shall be publicized together with the legal representative and that, under article 5 of Legislative Decree No.240/1991 (for the implementation of the EU regulation on the European Economic Interest Grouping) “shall assume obligations and civil and criminal responsibilities provided for the directors natural persons, without prejudice to the jointly liability of the director legal person”.

The principle expressed by the Court of Milan has been confirmed both in the revision of company law and in the case-law No.100/2007 of the Consiglio Notarile of Milan (Director legal person of limited company – articles 2380 bis and 2475 of the Italian Civil Code), according to which “it is possible the clause in the bylaws of the limited companies that provides the possibility to appoint as director one or more legal persons or entities different from the natural persons (“director legal person”), except restrictions or conditions provided for by specific laws for specific types of company”.

In relation to the legitimacy of this task, the Court of Milan had already delivered a judgement in this direction on February 27, 2012 according to which the legal person shall not suffer from capacity constraints, except in mandatory cases laid down by the law and it shall provide a level of reliability equivalent to the reliability of the natural person for the fulfillment of the obligations due to the assumption of the director office and the related liability.

For the liability regime of the natural person designated as director of a Srl by the legal representative, it is provided a jointly liability regime regarding the administrated company and its creditors in case of a violation of the obligations provided by the law for the directors.